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Jamison J. Shefts v. John Petrakis

September 12, 2012


The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED Thursday, 13 September, 2012 08:46:26 AM Clerk, U.S. District Court, ILCD


This matter is before the Court on Third-Party Defendant John Tandeski's Motion to Dismiss the Third-Party Complaint by Defendants. (Doc. 214). The Motion is now fully briefed and ready for disposition. For the reasons stated below, the Motion to Dismiss is granted.

As it has been stated repeatedly in Orders throughout this litigation, the Court will not again state the entire background of this case. In short, Plaintiff alleges that Defendants violated the federal Electronic Communications Privacy Act ("ECPA"), the Illinois Eavesdropping Act, and the federal Stored Communications Act ("SCA") by using various means to monitor his email and text message communications.*fn1 Plaintiff, Defendants Petrakis and Huffman, and Third-Party Defendant Tandeski were the four shareholders and Board of Directors members of Access2Go, a telecommunications company. Defendants' Third-Party Complaint against Tandeski alleges that he took part in their alleged monitoring activities, and is thus liable under the Illinois Joint Tortfeasors Contribution Act for his share of Plaintiff's damages, if any should be found.

Over Plaintiff's objection, the Court allowed Defendants to file their Third-Party Complaint against Tandeski. (Doc. 210). Plaintiff had argued that the Third-Party Complaint was "futile" and should be barred for two reasons: (1) his federal claims do not provide a right of contribution, and (2) his claims require a showing of intent, for which there is no right of contribution. On the basis of Plaintiff's and Defendants' arguments, the Court held that neither of these arguments was sufficient to bar the filing of the Third-Party Complaint, but left open Tandeski's ability to challenge the Third-Party Complaint. Tandeski has now appeared and filed a Motion to Dismiss, and so the Court can treat the matter more thoroughly.

As a preliminary matter, the Court notes that on November 29, 2011, it granted Defendants' Motion for Summary Judgment as to Count IV of Plaintiff's Complaint. (Doc. 209). Therefore, the Court must also dismiss Count IV of the Third-Party Complaint for Contribution, which asserts that Tandeski is liable to Defendants to the extent he contributed to Plaintiff's damages under that Count; if Defendants cannot be held liable to Plaintiff, Tandeski cannot be held liable to Defendants.


Tandeski moves to dismiss Defendants' Third-Party Complaint for Contribution, arguing both that Plaintiff's claims against Defendants are not subject to a claim for contribution, and that Defendants' Third-Party Complaint for Contribution has prejudiced him such that it should not be allowed.*fn2

Tandeski's first argument is that intentional torts, including those defined by statute, are not subject to a claim for contribution under the Illinois Joint Tortfeasor Contribution Act, relying on Gerill Corp. v. Jack L. Hargrove Builders, Inc., 538 N.E.2d 530, 542 (Ill. 1989). Gerill does state this rule, and it is also echoed in Illinois' federal courts. Id. at 542. See, e.g., Appley v. West, 929 F.2d 1176, 1180 (7th Cir. 1991). In response, Defendants argue, first, that because they were "potentially liable" for a non-intentional tort, the Act allows contribution. Defendants' only authority for this argument is the case of Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., in which the Seventh Circuit held that the Illinois Joint Tortfeasor Contribution Act could apply to both federal and state statutory claims so long as the plaintiff could have raised a state-law tort claim against the third-party defendant.*fn3 522 F.3d 776 (7th Cir. 2008). Sompo did not address the Gerill rule that intentional tortfeasors cannot claim contribution against one another. Other than one bankruptcy court case, Defendants cite no cases holding that the plaintiff's complaint is irrelevant for the application of Gerill.*fn4 In opposition to this case stand many state and federal cases applying Gerill to the terms of the plaintiff's complaint itself, not to imagined potential causes of action.*fn5 Appley, 929 F.2d at 1180 (because one of the claims against defendant was intentional tort, he was not entitled to contribution); Lawyers Title Ins. Corp. v. Dearborn Title Corp., 904 F.Supp. 818, 820-21 (N.D. Ill. 1995) ("Because Lawyers Title has alleged only intentional torts by First Midwest, however, First Midwest may not seek contribution for its potential liability."); People v. Brockman, 574 N.E.2d 626, 635-36 (Ill. 1991) (because statute did not require showing of intent and complaint did not allege intent, contribution available; absent these, factual determination of whether intent existed was required to determine if contribution available); Neurosurgery and Spine Surgery, S.C. v. Goldman, 790 N.E.2d 925, 934 (Ill. App. Ct. 2003) (though defamation can be based on recklessness, negligence, or malice, plaintiff only alleged malice, so no contribution available).

Defendants' other argument is that the ECPA, Illinois Eavesdropping Act, and SCA are not properly analogized to "intentional torts," because they do not require a showing of specific intent to permit recovery. They claim that because Plaintiff could recover under these statutes without showing that Defendants intended to cause him harm, his claims are not for truly intentional acts, within the common law and statutory exemption from contribution.*fn6 Other than showing that some statutes and common law torts require a showing of intent to cause harm (otherwise known as "specific intent"), while others require only a showing of intentional conduct, Defendants have not shown the Court that any courts applying common law or Illinois' Contribution Act have drawn this distinction and allowed contribution for intentional torts that do not necessarily require a showing of specific intent.*fn7

The Court must conclude that the Illinois Supreme Court in Gerill did not draw the distinction advocated by Defendants; it plainly held that "intentional tortfeasors are not entitled to contribution" under the Contribution Act. 538 N.E. at 542. After noting the traditional common law rule barring any contribution among tortfeasors, the court reviewed Skinner v. Reed-Prentice Division Package Machinery Co., in which it had "held that a defendant in a strict liability action could maintain a cause of action against a third party for contribution," and which the Illinois General Assembly had codified in the Contribution Act. Id. at 541 (citing 374 N.E.2d 437 (1977)). In addition to allowing contribution in strict liability actions, the General Assembly also "meant to create a right of contribution for negligent tortfeasors," but the Illinois Supreme Court concluded that it had not intended to allow contribution for intentional tortfeasors. Id. at 542. Notably, the Gerill court did not engage any discussion into various types of intentional torts. It is undisputable that the statutes relied upon by Plaintiff in this case all require intentional eavesdropping conduct, and so the Contribution Act does not permit Defendants to seek contribution.


For the foregoing reasons, Third-Party Defendant John Tandeski's Motion to Dismiss the Third-Party Complaint (Doc. ...

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